“Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph.”
Haile Selassie

Monday, April 1, 2013

Mark Small and "Evolution" as a Basis for Constitutional Interpretation

Over at Mark Small's blog at Civil Discourse Now, he fires back at my previous column on constitutional interpretation titled "Federalism and Constitutional Jurisprudence: Where Mark Small Goes Wrong."

FEDERALISM

From the outset, I would note that Mark does not dispute my explanation of his view of Federalism to Ogden on Politics readers, i.e. that Mark believes that under our Constitution the national government can do whatever it wants (unless specifically prohibited by the text of the Constitution or Mark's interpretation of that "evolving" language) and that states are merely administrative units of government that only have whatever power the national government chooses to grant to those states. Mark's view of Federalism as creating a unitary rather than a federal form of government is a view that would not earn him a passing grade in 9th grade civics.

Mark Small discussing his
view of the Constitution.

MARK'S VIEWS ON USING ORIGINAL INTENT IN CONSTITUTIONAL INTERPRETATION

Moving on to the more general argument about constitutional interpretation, for those of you not having the chance to read Mark's diatribe written sans pictures, I can easily summarize Mark's thoughts:

1) Determining the original intent behind the words of the Constitution is very hard;
2) Because ascertaining the original intent behind the words is hard, the actual words used in the Constitution and the original intent behind those words should be ignored.

Of course, if you're not going to look to the actual words of the Constitution or the history behind it, where do you look to find guidance on interpreting the document?

Mark Small promises a second edition on this topic which will explain his views on constitutional interpretation. In advance of that screed, let me explain Mark's jurisprudence using a recent example.

SAME SEX MARRIAGE

On the show Saturday, Mark suggested that the Court should recognize public opinion is "evolving" in favor of same sex marriage and should vote to use the Equal Protection Clause to strike down the laws in 40 plus states saying that marriage is between a man and a woman. (He seems to be wavering on whether this will actually happen.) So, in this example, Mark believes nine Supreme Court justices should be reading public opinion polls and assert the will of the people, in advance of their elected representatives in state legislatures, by interpreting the Constitution to require states to permit same sex marriage. Of course, correctly ascertaining the meaning of public opinion polls can be every bit as tricky as determining original intent behind a constitutional provision but apparently Mark feels our justices are qualified to perform the former but not the latter.

DEATH PENALTY

On Thursday's phone call with the Gary Snyder Show, Mark talked about how the Court should strike down the death penalty as violating the 8th Amendment's prohibition on cruel and unusual punishment because society had "evolved." Okay, on that one you don't even have to get into looking at history. The Constitution in three places specifically mentions capital punishment so it is clear the Founding Fathers or Framers, as Mark likes to call them, never intended to do away with the death penalty by adopting the 8th Amendment.

But Mark doesn't care about original intent. He wants our justices to rule according to how society "evolved" So one would think Mark is looking at public opinion on the death penalty. No, according to Gallup, in 1936 59% of the public supported the death penalty. As of 2012, the death penalty was supported by 63%. While there has been a drop in support in recent years, people still support the death penalty by a 2-1 margin. On the issue of the death penalty, Mark would support justices ignoring the language of the Constitution, the clear intent, and even public opinion.

CONCLUSION

From these two examples, it is clear that when Mark refers to society "evolving" as a justification supporting new interpretations of the Constitution, "evolution" means policy views he personally favors. Apparently society never evolves to a more conservative position - "evolution" always means moving in a liberal direction, i.e. the direction Mark Small prefers. If society is slow to "evolve," then it apparently is also okay for the Court to lead the evolution by adopting Mark Small-preferred policies.

Hmmm, if there was just some other branch of government that had elected representatives who would have the authority to enact policies that reflected society's evolving views on issues. Something like a law-making branch of government.

4 comments:

Of course, our view of Federalism itself has "evolved" over time. A simple example: Prior to the Civil War, the United States was referenced in the plural, e.g, "these" United States. Post-1865, the usage moved to the singular, "the" United States, moving the emphasis from many states to a single Union. There are many more examples, including changes in what we understand to be "due process of law".

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About Me

I have been an attorney since the Fall of 1987. I have worked in every branch of government, including a stint as a Deputy Attorney General, a clerk for a judge on the Indiana Court of Appeals, and I have worked three sessions at the Indiana State Senate.
During my time as a lawyer, I have worked not only in various government positions, but also in private practice as a trial attorney handing an assortment of mostly civil cases.
I have also been politically active and run this blog in an effort to add my voice to those calling for reform.